Citation Nr: 20008225 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 10-40 047 DATE: January 30, 2020 ORDER Entitlement to service connection for peripheral neuropathy of the right and left lower extremities, previously claimed as peripheral neuropathy of the feet, to include as due to exposure to herbicide agents and/or as secondary to posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to exposure to herbicide agents and/or as secondary to PTSD, is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to herbicide agents and/or as secondary to PTSD, is granted. FINDINGS OF FACT 1. The Veteran has experienced burning and pain in his feet related to bilateral extremity peripheral neuropathy since his separation from service. 2. Resolving reasonable doubt in the Veteran’s favor, the evidence shows he has experienced right upper extremity pain related to right upper extremity peripheral neuropathy since his separation from service. 3. Resolving reasonable doubt in the Veteran’s favor, the evidence shows he has experienced left upper extremity pain related to left upper extremity peripheral neuropathy since his separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the right and left lower extremities, previously claimed as peripheral neuropathy of the feet, to include as due to exposure to herbicide agents and/or as secondary to PTSD, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). 2. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to exposure to herbicide agents and/or as secondary to PTSD, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). 3. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to herbicide agents and/or as secondary to PTSD, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1968 to March 1970. This matter before the Board of Veterans’ Appeals (Board) is on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (Agency of Original Jurisdiction (AOJ)). The Veteran and his wife testified at a Travel Board hearing before the undersigned in October 2017. A transcript of the proceeding is of record. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, and has one of the diseases enumerated under 38 C.F.R. § 3.309(e), to include early onset peripheral neuropathy, that disease shall be service-connected (provided the requirements of 38 C.F.R. § 3.307(a)(6) have been met) even though there is no record of such disease during service. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. The diseases listed under 38 C.F.R. § 3.309(e) shall have become manifest to a degree of ten percent or more at any time after service, with some exceptions. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307(a)(6)(ii). Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. §§ 1116; 38 C.F.R. §§ 3.307(a)(6)(iii). Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. §§ 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran has been awarded the Purple Heart for combat service in Vietnam. Therefore, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. The Federal Circuit has held that the presumption found in 38 U.S.C. § 1154 (b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §§ 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to service connection for peripheral neuropathy of the right and left lower extremities, previously claimed as peripheral neuropathy of the feet, to include as due to exposure to herbicide agents and/or as secondary to PTSD 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to exposure to herbicide agents and/or as secondary to PTSD 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to herbicide agents and/or as secondary to PTSD The Veteran seeks entitlement to service connection for right and left lower extremity peripheral neuropathy, as well as entitlement to right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy. He served in combat in the Republic of Vietnam and has been awarded the Purple Heart for combat service. Therefore, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state in pertinent part that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). A review of the evidence of record reveals that the Veteran has a current diagnosis of neuropathy in both his lower and upper extremities. Though some treatment records question whether his condition is neuropathy or Morton’s neuromas, a letter from his treating physician dated February 2018 provides, “[the Veteran] is a patient of mine at Birmingham VA Clinic. He has a diagnosis of neuropathy.” The Board accepts this letter at face value and will therefore concede that the Veteran has a current diagnosis of peripheral neuropathy in both his bilateral lower and upper extremities. Therefore, the primary questions before the Board are (1) whether the Veteran’s contentions of in-service bilateral leg pain and a continuous burning sensation in his feet is related to or caused his present-day right and left lower extremity peripheral neuropathy, and (2) whether the Veteran’s contentions of bilateral hand pain is related to or caused his present-day right and left upper extremity peripheral neuropathy. Regarding his lower extremities, the Veteran testified under oath to experiencing bilateral leg pain that began when he was in Vietnam jumping out of helicopters or wearing boots with metal plates inside, and further testified to continuous problems with neuropathy pain after discharge. The Veteran has also indicated that his physician seems to think that his upper and lower extremity neuropathy stems from his time in Vietnam. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves, 682 F.3d at 999. Thus, the Board finds that the Veteran manifested right and left lower extremity peripheral neuropathy, and right and left upper extremity peripheral neuropathy during service pursuant to 38 U.S.C. § 1154(b) and Reeves. The Board observes that there is a presumption of service connection for a chronic disease such as peripheral neuropathy (under “other organic diseases of the nervous system”), rebuttable only by clearly attributable intercurrent causes, which manifests during service and then again “at any later date, however remote.” Groves, 524 F.3d at 1309. In this case, the Veteran currently manifests bilateral lower extremity and bilateral upper extremity peripheral neuropathy. Thus, pursuant to Groves, the Board finds that the criteria for entitlement to service connection for right and left lower extremity peripheral neuropathy, and right and left upper extremity peripheral neuropathy have been met as there is no clear intercurrent cause of bilateral lower extremity peripheral neuropathy shown by the record. In making this favorable determination, the Board is aware that the evidentiary record contains a medical opinion which weighs against the Veteran’s service connection claim. The August 2019 VA examiner opined that it is not likely than peripheral neuropathy occurred during or within one year of active duty service, rationalizing that nerve conduction studies repeatedly came up negative and suggesting no previous or current diagnosis many years following active duty. However, this examiner did not consider the Veteran’s testimony of experiencing bilateral hand pain and a continuous burning sensation in his feet during and after active duty service. Notably, on the Veteran’s March 1970 report of medical history, he marked “yes” when asked if he experiences cramping in his legs, which was not marked on his entrance report of medical history. In any event, the criteria for service connection for right and left lower extremity peripheral neuropathy and right and left upper extremity peripheral neuropathy is met when applying the combat provisions of 38 U.S.C. § 1154(b) as interpreted by Reeves, and the chronic disease presumption as interpreted by Groves. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Narducci, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.